[image courtesy of flickr user Flying Cloud]
Case: Viva! Int’l Voice for Animals v. Adidas Promotional Retail Operations, Inc., No. S140064 (Cal. Sup. Ct. 7/23/07)

The One Sentence Summary: California Supreme Court rejected Adidas’ argument that federal law not prohibiting importation of kangaroo products preempted California’s ban on products made from any part of a kangaroo.


What They Were Fighting About: California Penal Code section 653(o) prohibits the importation into or sale within the state of products made from kangaroo. Defendants Adidas Promotional Retail Operations, Inc., Sports Chalet, and Offside Soccer (collectively Adidas) are California retailers that sell athletic shoes made from the hides of three kangaroo species that exist only in Australia: the red kangaroo, the eastern grey kangaroo, and the western grey kangaroo. Plaintiff Viva! International Voice for Animals sued Adidas for engaging in an unlawful business practice under Business & Professions Code section 17200, by importing and selling athletic shoes made from kangaroo leather in violation of Penal Code section 653(o). Both the trial court and court of appeal ruled in favor of Adidas, concluding that federal law preempted California’s statutory ban.

Court Holdings:

  • In a unanimous decision, the California Supreme Court held that the federal Endangered Species Act of 1973 did not preempt California’s ban on products made from any part of a kangaroo.

 

  • The court’s opinion discussed four types of preemption and found that none existed in this case: express, conflict, obstacle, and field preemption.

 

 

  • The Endangered Species Act of 1973 established a cooperative federal-state approach to wildlife preservation. Section 6(f) of the Act contains a preemption clause and a savings clause that allow states to enact more stringent regulations regarding endangered or threatened species. The only exception to the preservation of state power is for activities specifically “authorized” by the Act or its implementing regulations.

 

 

  • California Supreme Court rejected Adidas’ argument that the 1995 removal of the three kangaroo species from the Endangered Species Act’s list of endangered or threatened species established a federal policy against state regulation. The Act does not preempt state efforts to protect the three kangaroo species by prohibiting importation of kangaroo products. Section 6(f) of the Act only preempt states from prohibiting what is “authorized” under the Act or its regulations, not anything that federal law has failed to prohibit.